United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY FIRST AMENDED
PETITION FOR WRIT OF HABEAS CORPUS (Doc. 26) ORDER DIRECTING
THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
In
2011, Rodney Zayas was convicted of second degree murder and
sentenced to forty years-to-life. In this action, Mr. Zayas
contends he is entitled to habeas relief for various grounds
including juror and prosecutorial misconduct, among other
claims. Because the Court does not find any basis for relief,
it recommends the petition be DENIED.
I.
PROCEDURAL HISTORY
After
his conviction in the County of Tulare Superior Court,
Petitioner appealed to the California Court of Appeals, Fifth
Appellate District (the “5th DCA”),
which affirmed the conviction. (People v. Zayas,
2012 WL 2358046 (Cal.App. June 21, 2012)). Petitioner then
filed a petition for review in the California Supreme Court,
which was denied. (Lodged Document (“LD”) 3; 4)
Petitioner
filed his first state habeas corpus petition in the
California Supreme Court; it was denied. (LD 6, 7) Petitioner
filed another habeas petition in the California Supreme Court
on July 28, 2014; it was denied on October 29, 2014. (LD 16,
17)
On
November 18, 2013, Petitioner filed the instant petition.
(Doc. 1) On February 19, 2014, espondent filed a motion to
dismiss the petition because it contained unexhausted claims,
i.e., rounds three and seven. (Doc. 12) On June 2, 2014,
Petitioner filed a motion to withdraw the nexhausted claims.
(Doc. 16) The Court granted Petitioner the opportunity to
file a motion for stay f proceedings to exhaust the two
unexhausted claims. (Doc. 18) Petitioner filed his motion for
stay. Doc. 19) The Court granted the motion for stay, and,
after Petitioner exhausted the unexhausted laims, permitted
Petitioner to amend the original petition to include the
newly exhausted claims. Docs. 22; 24) The first amended
petition was filed on January 1, 2015. (Doc. 26)
Respondent’s nswer was filed on April 7, 2015. (Doc.
35) On May 18, 2015, Petitioner filed his Traverse. (Doc. 1)
Respondent
does not appear to contend that any of the grounds for relief
in the petition have ot been fully exhausted. (Doc. 35, p. 9)
However, Respondent does argue, as discussed infra,
that rounds seven and eight of the first amended petition are
procedurally defaulted as untimely. (Id.)
FACTUAL
BACKGROUND
The
Court adopts the Statement of Facts in the 5th
DCA’s unpublished decision[1]:
About 7:45 p.m. on August 28, 2009, Tulare County
Sheriff's Sergeant Douglas Winslow was dispatched to
investigate a report of a shooting. When he arrived at the
scene, there were 25 to 30 people standing on the sidewalk,
and the victim, Arturo Bello, was lying face down in the road
about eight feet from the sidewalk. Winslow found no weapons
at the scene. Emergency personnel arrived and confirmed Bello
was dead. Bello was dressed in the color blue.
Sheriff's Detective Michael Yandell responded to a felony
traffic stop that same night. The fou occupants of the car,
including Zayas, were removed from the car at gunpoint and
detained and a gunshot residue test was conducted on
Zayas's hands. One witness at the “in-field
show-up” positively identified all four occupants of
the car as being involved in the shooting of Bello and
identified Zayas as the shooter.
In a taped interview that night, Zayas waived his rights and
agreed to be interviewed. Zayas briefly discussed that his
brother had been shot and killed by Surenos. Zayas had
Norteno gan tattoos and when asked about them he stated he
gravitated toward the people with whom his brother had
associated. At the time of Bello's shooting, Zayas
claimed he was “very intoxicated and did not
“remember too much.” Zayas eventually
acknowledged that he pulled out a gun because he
“fel[t] threatened.” He did not recall how many
times he fired his gun and claimed he did not see the person
he shot.
On August 29, 2009, a search pursuant to a search warrant was
conducted at a residence. The search uncovered indicia that
Zayas lived in a bedroom at that residence. In the bedroom
was a shotgun loaded with five live rounds, letters addressed
to Zayas from incarcerated inmates, and red clothing.
Zayas, Joshua Lee Hernandez, Richard Miguel Garcia, and
Santos Hernandez were charged with conspiracy to commit
murder, the murder of Bello, and the attempted murder of G.C.
It was alleged as to all three counts that they were
committed for the benefit of a criminal street gang. A
special circumstance appended to the murder count alleged
that the murder was committed by active participants in a
criminal street gang and that it furthered the activities of
the gang.
Prior to trial the trial court granted the prosecutor's
motion to sever the trials of the four defendants and the
motion to dismiss the conspiracy count. Also, Zayas moved to
bifurcate the trial on the gang allegations from the
substantive offense, which the trial court denied. Zayas then
moved to limit the admissibility of gang evidence. The trial
court heard argument and made a tentative ruling.
At trial the analysis of the gunshot residue test of
Zayas's hands established that he had gunshot residue on
both his right and left hands. Expert testimony established
that Bello was identifying himself as a Sureno. Expert
testimony also established that the Nortenos and Surenos were
enemies, that Zayas and his companions, on the evening of the
shooting, were Norteno gang members, and that the charged
crimes were committed for the benefit of the Norteno gang.
Zayas testified on his own behalf. He testified regarding his
brother's death, his decision to carry a gun, interviews
he gave to the police, and questionnaires he filled out at
the time of booking. Zayas claimed he was a certified medical
assistant and was on a waiting list at Fresno City College
for the nursing program.
Zayas said he and his companions had been drinking and
“smoking pot” on the day Bello was shot. While
driving through a neighborhood, Zayas said some people
wearing the color blue threw something at the car they were
in, so they stopped and got out of their car. One of the
persons wearing blue approached them. Zayas thought he saw
something “shine” or “glare” from the
person's waistband, so he pulled out his gun and shot at
the person.
The jury found Zayas not guilty of first degree murder as
charged but guilty of second degree murder. The jury found
true that a principal personally discharged a firearm and
that the crime was committed for the benefit of a criminal
street gang. The jury found him not guilty of attempted
murder. On May 20, 2011, Zayas was sentenced to a term of 40
years to life.
(Zayas, 2012 WL 2358046, at *1-2).
DISCUSSION
I.
Jurisdiction
Relief
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution, laws, or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 n. 7 (2000). Petitioner asserts that he
suffered violations of his rights as guaranteed by the United
States Constitution. The challenged conviction arises out of
the Tulare County Superior Court, which is located within the
jurisdiction of this court. 28 U.S.C. § 2254(a); 28
U.S.C.§ 2241(d).
On
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct.
586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500
(9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997),
overruled on other grounds by Lindh v. Murphy, 521
U.S. 320 (holding the AEDPA only applicable to cases filed
after statute’s enactment). The instant petition was
filed after the enactment of the AEDPA and is therefore
governed by its provisions.
II.
Legal Standard of Review
A
petition for writ of habeas corpus under 28 U.S.C. §
2254(d) will not be granted unless the petitioner can show
that the state court’s adjudication of his claim: (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 412-413.
A state
court decision is “contrary to” clearly
established federal law “if it applies a rule that
contradicts the governing law set forth in [the Supreme
Court’s] cases, or “if it confronts a set of
facts that is materially indistinguishable from a [Supreme
Court] decision but reaches a different result.”
Brown v. Payton, 544 U.S. 133, 141 (2005), citing
Williams, 529 U.S. at 405-406 (2000).
In
Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770
(2011), the U.S. Supreme Court explained that an
“unreasonable application” of federal law is an
objective test that turns on “whether it is possible
that fairminded jurists could disagree” that the state
court decision meets the standards set forth in the AEDPA.
The Supreme Court has “said time and again that
‘an unreasonable application of federal law is
different from an incorrect application of federal
law.’” Cullen v. Pinholster, 131 S.Ct.
1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ
of habeas corpus from a federal court “must show that
the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility of fairminded disagreement.”
Harrington, 131 S.Ct. at 787-788.
The
second prong pertains to state court decisions based on
factual findings. Davis v. Woodford, 384 F.3d at
637, citing Miller-El v. Cockrell, 537 U.S. 322
(2003). Under § 2254(d)(2), a federal court may grant
habeas relief if a state court’s adjudication of the
petitioner’s claims “resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” Wiggins v. Smith, 539 U.S. at
520; Jeffries v. Wood, 114 F.3d at 1500. A state
court’s factual finding is unreasonable when it is
“so clearly incorrect that it would not be debatable
among reasonable jurists.” Id.; see Taylor
v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004),
cert.denied, Maddox v. Taylor, 543 U.S.
1038 (2004).
To
determine whether habeas relief is available under §
2254(d), the federal court looks to the last reasoned state
court decision as the basis of the state court’s
decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803
(1991); Robinson v. Ignacio, 360 F.3d 1044, 1055
(9th Cir. 2004). “[A]lthough we independently review
the record, we still defer to the state court’s
ultimate decisions.” Pirtle v. Morgan, 313
F.3d 1160, 1167 (9th Cir. 2002).
The
prejudicial impact of any constitutional error is assessed by
asking whether the error had “a substantial and
injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993); see also Fry v. Pliler, 551 U.S. 112,
119-120 (2007)(holding that the Brecht standard
applies whether or not the state court recognized the error
and reviewed it for harmlessness).
III.
Review of Petitioner’s Claims
In his
petition, Mr. Zayas claims the following as grounds for
relief: (1) juror misconduct as to juror no. 6; (2)
ineffective assistance of trial counsel for not adequately
questioning and dismissing juror no. 6; (3) due process error
in denial of the bifurcation motion; (4) due process
violation for failure to excuse juror who expressed fear; (5)
error in admission of evidence; (6) prosecutorial misconduct
in closing argument; (7) ineffective assistance of counsel in
admitting Petitioner’s school records; (8)
prosecutorial misconduct in implying during
Petitioner’s cross-examination that she had more
evidence than she did of his brother’s murder; and, (9)
cumulative error. (Doc. 26).
A.
Juror Misconduct
Petitioner
first contends that Juror number 6 should have been excused
because of misconduct in making an unauthorized telephone
call and for her relationship to a potential witness at
trial. This contention is without merit.
1.
Standard of Review
Petitioner
raised this claim by way of a habeas corpus petition in the
California Supreme Court, which summarily rejected the claim
without issuing a reasoned decision. Where, as here, the
state court reached a decision on the merits but provided no
reasoning to support its conclusion, a federal habeas court
independently reviews the record to determine whether habeas
corpus relief is available under § 2254(d). Stanley
v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853. “[A]lthough we independently review the record,
we still defer to the state court’s ultimate
decisions.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002). Where no reasoned decision
is available, the habeas petitioner still has the burden of
“showing there was no reasonable basis for the state
court to deny relief.” Harrington, 131 S.Ct.
at 784.
2.
Trial Hearing on Juror No. 6
During
trial, Juror number 6 approached the bailiff and, out of
earshot of other jurors, indicated to him that when she heard
the testimony of Detective Sanchez, who mentioned the name of
another deputy sheriff, Joseph Aguilar, who was Juror number
6’s brother-in-law, she realized that her relative had
worked on Petitioner’s case. (LD 12, p. 471) At an in
camera hearing, Juror number 6 told the judge that, during a
recess and after she heard her brother-in-law’s name
mentioned by Sanchez, she called Aguilar, who told her only
that he was under subpoena in this case. (LD 12, p. 473)
Juror number 6 stated that Aguilar did not say anything else
about the case and that she knew nothing else except that
Aguilar’s name had been mentioned by Sanchez.
(Id., p. 474)
The
judge asked Juror number 6 if she could be fair and
impartial, and she insisted she could. (Id., p. 475)
In response to queries from the judge, Juror number 6 also
stated she was very close to Aguilar, he told her nothing
about the case, she had not learned anything about the case
from outside sources, and the fact that Aguilar may be
involved in the case would not influence her. (Id.,
p. 476)
During
the colloquy, Juror number 6 also disclosed that, at some
point in the past, her property and that of her neighbors had
been vandalized by Sureno gang members. After Juror no. 6
spoke about the gang problem at a board of supervisors
meeting, her vehicle was vandalized as well. She was quoted
in the local newspaper as referring to gang members as
“cockroaches.” The judge asked her if she could
be fair and impartial and Juror number 6 insisted that she
could: “It doesn’t matter what I’ve heard.
I went to gang unit presentations where, you know, it
doesn’t matter what I’ve heard, what I seen. I
don’t know for a fact that he did anything.” (LD
12, pp. 477-479)
When
asked for a response by the judge, defense counsel stated,
“Not really, Your Honor. It’s kind of one of
those tough calls.” (Id., p. 480) The judge
then ruled as follows: “She has made it clear that she
believes that she can be fair. I think she also made it clear
that if her brother-in-law testified that she wouldn’t
be biased toward him, which he’s not going to testify,
but I don’t see a reason to remove her.”
(Id.) Defense counsel replied, “Okay.”
(Id.)
3.
Federal Standard
"In
all criminal prosecutions, " state and federal,
"the accused shall enjoy the right to . . . trial . . .
by an impartial jury, " U.S. Const., Amends. 6 and 14;
see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444
(1968); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct.
1639 (1961). “Even if only one juror is unduly biased
or prejudiced, the defendant is denied his constitutional
right to an impartial jury.” Tinsley v. Borg,
895 F.2d 520, 523-524 (9th Cir. 1990). In
reviewing a claim of juror misconduct, "[t]he test is
whether or not the misconduct has prejudiced the defendant to
the extent that he has not received a fair trial."
United States v. Klee, 494 F.2d 394, 396 (9th
Cir.1974). However, while the Supreme Court has never
rejected the idea of implied juror bias, implied bias by a
juror has rarely been applied. See United States v.
Plache; 913 F.2d 1375, 1377 (9th Cir. 1990); Tinsley
v. Borg, 895 F.2d at 527. "Only in extreme or
extraordinary cases should bias be presumed."
Plache; 913 F.2d at 1377, quoting,
Tinsley, 895 F.2d at 527.
Moreover,
the Constitution “does not require a new trial every
time a juror has been placed in a potentially compromising
situation.” Smith v. Phillips, 455 U.S. 209,
217, 102 S.Ct. 940 (1982). The safeguards of juror
impartiality, such as voir dire and protective instructions
from the trial judge, are not infallible; it is virtually
impossible to shield jurors from every contact or influence
that might theoretically affect their vote. Id. Due
process means only a jury capable and willing to decide the
case solely on the evidence before it and a trial judge ever
watchful to prevent prejudicial occurrences and to determine
the effect of such occurrences when they happen. Id.
Although it is generally preferred that a trial court hold an
evidentiary hearing when allegations of juror misconduct
arise, it is not always required, particularly when the court
knows the exact scope and nature of the misconduct. See
United States v. Halbert, 712 F.2d 388, 389
(9th Cir.1983); United States v. Hendrix,
549 F.2d 1225, 1227 (9thCir.1977); see also
United States v. McVeigh, 153 F.3d 1166, 1187 (10th
Cir.1998).
The
Ninth Circuit recognized that to disqualify a juror for cause
requires a showing of actual bias or implied bias; that is,
“bias in fact, or bias conclusively presumed as a
matter of law.” United States v. Gonzalez, 214
F.3d 1109, 1111-12 (9th Cir.2000). There are three theories
of juror bias based on a misstatement by a juror during voir
dire: (1) McDonough-style bias (i.e., the juror
fails to answer honestly and, had he answered correctly, the
information would have provided a basis for a challenge for
cause, see McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548 (1984)); (2) “actual bias,
which stems from a pre-set disposition not to decide an issue
impartially;” and (3) “implied (or presumptive)
bias, which may exist in exceptional circumstances where, for
example a prospective juror has a relationship to the crime
itself or to someone involved in a trial, or has repeatedly
lied about a material fact to get on the jury.”
Fields v. Brown, 503 F.3d 755, 766 (9th Cir.2007)
(en banc).
If a
juror failed to answer a voir dire question correctly, a
petitioner may obtain a new trial by showing: (1) that the
juror failed to answer honestly a voir dire question, and (2)
that this undermined the impartiality of the petitioner's
jury. See Dyer v. Calderon, 151 F.3d 970, 973 (9th
Cir.1998) (en banc). The motives for concealing information
may vary, but only those reasons that affect a juror's
impartiality can truly be said to affect the fairness of the
trial. See McDonough, 464 U.S. at 556.
Forgetfulness, for example, does not indicate lack of
impartiality. See United States v. Edmond, 43 F.3d
472, 473-74 (9th Cir.1994) (no misconduct where district
court found juror's testimony that he forgot about being
victim of armed robbery truthful).
4.
Analysis
Although
the state court properly conducted a full hearing and engaged
Juror no. 6 in a meaningful colloquy about her ability to be
fair and impartial, it also bears emphasis that the trial
judge’s exercise of his or her responsibility to be
“ever watchful to prevent prejudicial occurrences and
to determine the effect of such occurrences when they happen,
” Smith, 455 U.S. at 217 n. 7, inherently
involves the trial court’s “appraisal of witness
credibility and demeanor.” Thompson v.
Keohane, 516 U.S. 99, 111 (1995). In performing that
function, the trial judge is best positioned to make
decisions regarding credibility and demeanor; hence, the
“judgment of the jurist-observer” has been given
“presumptive weight” in these matters.
Id. As a result, juror impartiality is a factual
issue that is within the statutory presumption of
correctness. Id.; Wainwright v. Witt, 469
U.S. 412, 429 (1985); Tinsley, 895 F.2d at 525
(“findings of state trial and appellate courts on juror
impartiality deserve ‘a high measure of
deference.’”); see Skilling v. United
States, __U.S.__, 130 S.Ct. 2896, 2918
(2010)(“reviewing courts are properly resistant to
second-guessing the trial judge’s estimation of a
juror’s impartiality….”).
Here,
the state court conducted a full hearing on the issue, the
juror was questioned, and both attorneys were afforded an
opportunity to further question the juror and make arguments
in support of their clients. Neither attorney requested that
Juror number 6 be removed. Indeed, the lack of response to
the judge’s invitation for further inquiry would
suggest that neither attorney believed that grounds for
removing Juror no. 6 were present. Moreover, the judge
repeatedly asked Juror no. 6 if she could be fair and
impartial, notwithstanding her relationship to Aguilar, a
potential witness but not one that the judge expected to
actually be called at trial, and despite her having been the
victim on several occasions of gang intimidation and the
vandalizing of her property. Nothing in Juror number
6’s responses suggested that she was unfairly biased
against Petitioner or that she could not fully discharge her
responsibilities as a juror. In short, there is nothing in
the record to support a conclusion that Juror number 6 was
actually or impliedly biased and should have been removed
from the jury by the trial judge. Such critical credibility
decisions, made by the “jurist-observer” who was
actually present during Juror number 6’s questioning,
should not be overturned in the total absence of any evidence
of prejudice or bias.
As
mentioned, due process means only a jury capable and willing
to decide the case solely on the evidence before it and a
trial judge ever watchful to prevent prejudicial occurrences
and to determine the effect of such occurrences when they
happen. Smith v. Phillips, 455 U.S. at 217. That
appears to be precisely took place in this case, i.e., a
juror willing to decide the case impartially and a judge
carefully monitoring the situation to assess whether the jury
could, in fact, be impartial. Due process was not violated.
Hence, the Court’s independent review of the record
supports the conclusion that the claim should be rejected.
B.
Ineffective Assistance of Trial Counsel Regarding Juror
Number 6
Petitioner
next contends that trial counsel was ineffective for not
conducting a sufficient inquiry into Juror number 6’s
potential bias.
1.
Standard of Review
The
state supreme court summarily denied Petitioner’s
habeas claim on this issue. Accordingly, as with the prior
claim, the Court will independently review this claim.
2.
Federal Standard For Ineffective Assistance of
Counsel
Effective
assistance of counsel is guaranteed by the Due Process Clause
of the Fourteenth Amendment. Evitts v. Lucey, 469
U.S. 387, 391-405 (1985). Claims of ineffective assistance of
counsel are reviewed according to Strickland 's
two-pronged test. Miller v. Keeney, 882 F.2d 1428,
1433 (9th Cir.1989); United States v. Birtle, 792
F.2d 846, 847 (9th Cir.1986); see also Penson v.
Ohio, 488 U.S. 75(1988) (holding that where a defendant
has been actually or constructively denied the assistance of
counsel altogether, the Strickland standard does not
apply and prejudice is presumed; the implication is that
Strickland does apply where counsel is present but
ineffective).
To
prevail, Petitioner must show two things. First, he must
establish that counsel’s deficient performance fell
below an objective standard of reasonableness under
prevailing professional norms. Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052 (1984).
Second, Petitioner must establish that he suffered prejudice
in that there was a reasonable probability that, but for
counsel’s unprofessional errors, he would have
prevailed on appeal. Id. at 694. A “reasonable
probability” is a probability sufficient to undermine
confidence in the outcome of the trial. Id. The
relevant inquiry is not what counsel could have done; rather,
it is whether the choices made by counsel were reasonable.
Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th
Cir.1998).
With
the passage of the AEDPA, habeas relief may only be granted
if the state-court decision unreasonably applied this general
Strickland standard for ineffective assistance.
Knowles v. Mirzayance, 556 U.S. __, 129 S.Ct. 1411,
1419 (2009). Accordingly, the question “is not whether
a federal court believes the state court’s
determination under the Strickland standard
“was incorrect but whether that determination was
unreasonable-a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007);
Knowles, 129 S.Ct. at 1420. In effect, the AEDPA
standard is “doubly deferential” because it
requires that it be shown not only that the state court
determination was erroneous, but also that it was objectively
unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5
(2003). Moreover, because the Strickland standard is
a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that
standard. See Yarborough v. ...